Trawl: Property Law UK Update Info for Newsletter Editors
| Trawl date | 07 January 2024 |
| Article deadline | 18 January 2024 |
Contents – topic areas
- Residential – Landlord & Tenant
- Residential Lease Management
- Residential Leasehold Management
- Building Safety Act 2022
- Transactional Issues – Contractual Liability
- Planning
- Commercial Property
- Property Transactions
- Boundaries
- Co-ownership and Estoppel
- Mortgages
- Rights of Way
1. Residential – Landlord & Tenant
Holding & Management (Solitaire) Ltd v Leaseholders of Sovereign View [2023] UKUT 174 (LC) (27 July 2023)
LANDLORD AND TENANT – SERVICE CHARGES – consultation requirements – dispensation – relevant prejudice to the leaseholders – appropriateness of conditions attached to dispensation
2. Residential Lease Management
Alma Property Management Ltd v Crompton & Anor [2023] EWCA Civ 849 (19 July 2023)
This appeal from the High Court in Manchester concerns a prominent high-rise building in Salford, partly used as a hotel and partly as residential flats let on long leases. The Appellant (and Claimant below), Alma Property Management Ltd, (“Alma”) is the current freeholder, and brought an action for specific performance of the repairing obligations in the common parts lease. The Receivers counter-claimed for a declaration that Alma had unreasonably refused its consent to an assignment of that lease. BAILII link
3. Residential Leasehold Management
Avon Ground Rents Ltd v Canary Gateway (Block A) RTM Company Ltd [2023] EWCA Civ 616 (30 May 2023)
The question raised by this appeal is whether a “shared ownership lease” granted for a term of more than 21 years is a “long lease” for the purposes of the Commonhold and Leasehold Reform Act 2002 (“the 2002 Act”) regardless of whether the tenant’s share is 100%. The point turns on the construction of section 76 of the 2002 Act.
4. Building Safety Act 2022
Adriatic Land 5 Ltd v Long Leaseholders at Hippersley Point [2023] UKUT 271 (LC) (Decision 13 November 2023)
LANDLORD AND TENANT – SERVICE CHARGES – BUILDING SAFETY ACT 2022 – application for dispensation from consultation requirements – whether a costs condition should have been imposed as a condition of granting dispensation – whether the recovery of the costs of the application, by the service charge, was prevented by paragraph 9 of Schedule 8 to the Building Safety Act 2022 – appeal allowed – decision re-made as a decision to grant dispensation on an unconditional basis, together with a determination that paragraph 9 of Schedule 8 prevented recovery of the costs from tenants holding qualifying leases
URS Corporation Ltd v BDW Trading Ltd [2023] EWCA Civ 772 (03 July 2023)
With 11 files of authorities, ranging from the well-known (Pirelli, Murphy) to the obscure (Tozer Kemsley), and disputes concerning scope of duty, accrual of the cause of action in tort, contribution and the Defective Premises Act 1972 (“DPA”), this appeal had all the hallmarks of a three-day examination in construction law. However, with the assistance of leading counsel on both sides, and the teams that they led, the issues were swiftly identified and then efficiently debated. Perhaps the most important concerned the date of the accrual of a cause of action in tort against designers of a defective building, in circumstances where the defect caused no immediate physical damage. Did the cause of action accrue when the building was completed to the defective design, or when the developers discovered that the buildings were structurally defective?
5. Transactional Issues – Contractual Liability
Andrew Hicks Engineering Ltd v Jenk Associates Ltd & Anor [2023] EWHC 2031 (Ch) (04 August 2023)
In September 2008, the Hicks granted a 20-year lease of unit 4 to the claimant. In 2013 the freeholder sold the remainder of the freehold of the estate to the first defendant, whose sole shareholder and director is a Mr Down. Some time thereafter there were discussions between Mr Down and Mr and Mrs Hicks as to terms on which the Hicks and the claimant might relocate and the whole estate be redeveloped as residential property. However, negotiations and indeed relations between the parties broke down, and no agreement was reached.
6. Planning
Humphrey & Anor v Bennett [2023] EWCA Civ 1433 (29 November 2023)
There are two appeals before the Court in a derivative claim (the “Claim”) brought by Neil Humphrey and Fiona Humphrey (“Mr. and Mrs. Humphrey”) against Paul Bennett (“Mr. Bennett”) and his partner, Alison Murphy (“Ms. Murphy”). In the Claim it is alleged that Mr. Bennett and Ms. Murphy breached their statutory and fiduciary duties as directors of Esprit Land Limited (“the Company”) by causing the Company to dispose of a piece of land and diverting an opportunity to acquire an adjoining piece of land to a second company called Esprit Homes Construction Limited (“Construction”) of which Mr. Bennett and Ms. Murphy were directors, and Mr. Bennett was the sole shareholder.
7. Commercial Property
Abbas v Hussain & Ors [2023] EWHC 2322 (Ch) (19 September 2023. YES)
This case concerns a claim relating to the beneficial ownership of a development property being the western half (“the Disputed Property”) of the former Tilt Hammer Inn, Alum Rock Road, Birmingham, B8 1Ll and 4-6 Adderley Road, Saltley, Birmingham, B8 1ED (together “Tilt Hammer”).
8. Property Transactions
Byers & Ors v Saudi National Bank (Rev1) [2023] UKSC 51 (20 December 2023)
This appeal is about the equitable personal claim in what is generally called knowing receipt. It usually arises where a trustee (“T”) transfers trust property beneficially owned by the claimant (“C”) to the defendant (“D”) in breach of trust, and D learns about that breach before disposing of the property by transfer to a third party or by dissipation or destruction of it. In such a case although, after disposal, dissipation or destruction of the property by D, C can no longer pursue a proprietary claim that D transfer the property to C, (or if appropriate back to T or to a new trustee), D incurs a personal liability to account or pay compensation to C as if D were a trustee of the property. From the moment when D learns of the breach of trust, D comes under a personal obligation to restore the trust property to its equitable owner, and to act as its custodian in the meantime. That obligation, together with the concomitant liability to account, is often described as a form of constructive trusteeship. The single issue to be decided on this appeal is whether an equitable claim in knowing receipt depends (among other things) upon C retaining an equitable proprietary interest in the property transferred to D at the time when it reached D’s hands before D either transferred, dissipated or destroyed the property. This case is (perhaps) unusual in that D knew at the time of its receipt of the property that T was transferring it in breach of trust and has been sued in knowing receipt without having transferred, destroyed or dissipated it. The proprietary claim to the property which would usually arise on those facts is defeated (as held by the Court of Appeal and is now common ground) by the fact that the transfer from T to D had the effect under the applicable foreign law of giving D clear title to the property, free from C’s beneficial interest in it.
Ullah v Ullah & Anor [2023] EWHC 3313 (KB) (21 December 2023)
The underlying claim which forms the subject of this appeal relates to seven properties and two in particular, specifically: i) 61 Dudden Hill Lane, London NW10 1BD (“61DHL”) purchased in May 1995 and ii) 91-93 Coldharbour Lane, Hayes, Middlesex UB3 3EF (“91-93 CHL”) purchased in February 1996 (“the two properties”) which were purchased in the name of the Respondent.
Between June 1995 and May 1999, the seven properties, including the two properties the subject of his appeal, were purchased by the Appellant but registered in the Respondent’s name, (the Respondent being his son). The Appellant ran a carpet business in which his sons worked. It is the Appellant’s case that from the retained profits of his business he was able to purchase the properties for investment purposes.
Lenkor Energy Trading DMCC v Puri [2023] EWHC 2979 (KB) (23 November 2023)
A decision concerning the question as to when property purchased in the name of a private company owned (directly or through nominees) by its funder will be owned beneficially by the funder, rather than the company whose shares are owned beneficially by the funder. The question arose in the context of an application for a charging order over properties to secure a judgment debt of over £48 million.
Brem v Clark & Anor [2023] EWHC 1358 (KB) (16 June 2023
At the heart of the claim is an issue relating to the back garden. It is the claimant’s case that, whilst a tenant, he had enjoyed the use of the whole of the back garden area and that he understood that it was all to be part of the property conveyed to him. However, it is the defendants’ case that the area of garden to be purchased and conveyed was truncated, with a fence demarcating the area being purchased by the claimant. It is the claimant’s case that the value of the property as actually conveyed, with the truncated garden, was £307,000, £18,000 less than the amount he paid and this is the sum he claims against the second defendant. In addition, there are other claims against the first defendant: reinstatement of the full garden; £6,000 paid for access which was not granted; £2,000 paid for money expended by the claimant in clearing the garden and £8,000 being the cost of repairs to the house, a total of £16,000 of asserted losses which were not connected with the claim in respect of the value of the house.
9. Boundaries
Clapham & Ors v Narga [2023] EWHC 3337 (Ch) (22 December 2023)
By Appellant’s Notice dated 21 February 2023 the Appellants, Mr and Mrs Clapham and Mrs and Mrs Wright, applied for permission to appeal against the Order dated 7 March 2023 (the “Order“) made by His Honour Judge Hedley (the “Judge“) dismissing their claims for declaratory relief in relation to (1) the location of the boundary between their properties 24 to 26 the Green Thrussington Leicestershire, and the property of the Respondent, Ms Narga, at Brook Barn, Seagrave Road Thrussington Leicestershire; and (2) their claim that they were entitled to be registered as proprietors of two strips of land between their properties and hers.
10. Co-ownership and Estoppel
Morton v Morton & Anor (Re Costs) [2023] EWHC 3223 (Ch) (15 December 2023).
A judgment on costs following the trial of proceedings relating to the dissolution of a family partnership and taking of post dissolution partnership accounts. The partnership was between the late Jennifer Ruth Morton (“Jennifer“), her son, Simon Morton (“Simon“), and his wife, Alison Morton (“Alison“). It related to farms in Cheshire and Staffordshire. The partnership was dissolved during Jennifer’s lifetime but Simon and Alison continued to carry on the partnership business from the time of dissolution.
Holden v Holden & Anor [2023] EWHC 3292 (Ch) (20 December 2023)
This case concerns the dissolution of a farming partnership (the “Partnership“) that subsisted among three brothers. The partners were the Claimant, Mr Robin Holden; the First Defendant, Mr David Holden; and the Second Defendant, Mr Nicholas Holden.
11. Mortgages
Shokrollah-Babaee v EFG Private Bank Ltd [2023] EWHC 3270 (Ch) (19 December 2023)
A claim was brought by a former high net worth customer of the Bank who alleged that the Bank had acted in breach of statutory (Mortgage Conduct of Business rules) and common law duties in relation to loans taken out by the customer. The judgment addresses, among other things, the limitation period for claims under s.138D of the Financial Services and Markets Act 2000 and the liability of a bank in relation to loan security valuations carried out by third parties.
12. Rights of Way
Price v Nunn [2023] EWHC 3200 (Ch) (19 December 2023)
This judgment follows the trial in a neighbours’ dispute over a right of way which has a litigation life of almost half a century. The dispute as now presented carries with it a procedural narrative and the consequences of six earlier, detailed judicial decisions which bear closely upon the remaining issues that now fall to be determined by me. This highly unusual background adds a degree of complexity and certainly length to this judgment which follows the trial of those issues. Despite the factually contentious claim about a “prescriptive right of way” having disappeared just before the trial, the intricacy of some of those issues is further enhanced by the need for the court, in 2023, to do its best to analyse what the line and status of the track in question might have been some two-and-a-quarter centuries ago.
English 